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Customs - Case Laws
Showing 21 to 40 of 96 Records
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2020 (9) TMI 856 - CESTAT AHMEDABAD
Flexi Tank Containers - durable goods or not - Benefit of exemption N/N. 104/94-Cus dated 16/03/1994 - entire emphasis of the Revenue is that the subject Flexi Tank Containers are not repeatedly used - scope of SCN - Time Limitation.
HELD THAT:- Tribunal in various cases has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof, it is clear that the container imported by the assessee is durable. Moreover, even taking reference from the above judgments, we find that on comparison basis also, all the packing containers which were subject matter in the above cases, the Flexi Tank Container is much durable. Therefore, applying the ratio of the judgments in the above cases, in our view, it is clear that the Flexi Tank Containers imported by the assessee is durable container. Consequently notification no. 104/94-Cus is available to such containers. We also observe that neither the Show Cause notice nor Order in original, raise any dispute that Flexi Tank Containers are strong enough to withstand and endure the rigours of sea waves. Therefore, durability of the containers in isolation is not in dispute.
Only because the containers do not have repeated use, the containers which are otherwise durable benefit of notification cannot be denied - reliance can be placed in the case of M/S. SAM AGRI TECH. LIMITED VERSUS CCE, C&ST, HYDERABAD [2017 (4) TMI 678 - CESTAT HYDERABAD].
Scope of SCN - HELD THAT:- Learned Counsel also pointed out that apart from the issue of durability, the Adjudicating Authority has also taken a ground for denying the exemption that re-export of the Flexi Tank Containers was not done by the present assessee but by the exporters of liquid cargo and also on the ground that exporters to whom the appellant has sold the Flexi Tank Containers have claimed drawback by factoring in the process of Flexi Tank Containers in the exports. We find that this allegation was not raised in the show cause notice. Therefore, this particular finding is beyond the scope of show cause notice. The Adjudicating Authority cannot raise any new grounds in the Adjudication Order which was not raised in the Show Cause Notice.
Time Limitation - HELD THAT:- There is no dispute on the fact that the appellant have made a correct and true declaration of description of the goods in their Bills of entry. The goods have been physically examined by the Custom department and examination report has been submitted. As per the condition of notification, the appellant had executed the bond which after fulfilment of condition that re-export of the container duly filled with liquid cargo bond has been cancelled. The appellant with a bonafide belief claimed the exemption notification 104/94-Cus without making any mis-declaration. The Custom department has very consciously after satisfying themselves allowed the exemption notification and not only that they have cancelled the bond after satisfying that export obligation is fulfilled. In this undisputed fact, there is no suppression of fact on the part of the assessee and custom department was free to interpret in their own manner whether the exemption to be allowed or not. Therefore, it cannot be said that there is any suppression of fact, mis-statement or misdeclaration on the part of the assessee - Appeal is unsustainable also on time bar.
Appeal dismissed - decided against Revenue.
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2020 (9) TMI 855 - CESTAT KOLKATA
Levy of penalty under Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 - Valuation of Export goods - High Seas Sale - rejection of declared value based on contemporaneous imports - the case of the Appellant is that they had been denied an opportunity of personal hearing by the Adjudicating Authority - principles of natural justice - HELD THAT:- Since the statement of Mr. Kuntal Mitra (CHA) has contributed substantially to the case made out by the Department against the Appellant, the Department ought to have granted an opportunity of cross-examination to the Appellant. The process of cross-examination is not a mere empty formality but a part of an assessee’s right to put forth a proper defence. The reasoning given by the Department for denying the cross-examination to the appellant, that they failed to appear on the appointed date is not acceptable in as much as the Appellant had made the request for providing cross-examination at the adjudication stage.
Hon’ble Gujarat High Court in Manek Chemicals Pvt. Ltd. v. Union of India [2015 (12) TMI 1267 - GUJARAT HIGH COURT] has held that cross-examination is an integral part of the Principles of Natural Justice. Therefore, by denying an opportunity of cross-examination to the Appellant, the Adjudicating Authority has acted in violation of the Principles of Natural Justice.
The matter is remanded to the Adjudicating Authority to allow the Appellant an opportunity for cross-examination of the CHA and pass an order after considering the evidence on record - Appeal allowed by way of remand.
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2020 (9) TMI 854 - CESTAT MUMBAI
DFIA Scheme - Actual user condition - Benefit of exemption in notification no. 40/2006-Cus dated 1st May 2006 - - the impugned order finds that ‘float glass’ was not amenable to use in the manufacture of ‘finished leather from hide of cow/buffalo’, that the intent of the policy had been violated as the flexibility of importing alternative inputs, allowed in circular dated 24th March 2009, did not extend to goods that were not capable of being used in the industry, and that clarification dated 14th February 2002 on use of ‘float glass’ as ‘glazing glass’ stood withdrawn by the advisory of 15th January 2013.
HELD THAT:- It is clear from the narration in the impugned order that the item permissible for import in the norms relating to ‘finished leather from hide of cow/buffalo’, as well as in the impugned licences, was ‘glazing glass’ and, in the former, continues to be so. It is also on record that the clarification of the Advance Licensing Committee issued in 2002 was withdrawn by the Norms Committee in 2013. The foundation of the impugned order is the attribution of retrospective effect to the subsequent withdrawal so as to render the impugned imports to be contrary to the list appended to the licence. With the description in the norms continuing to remain unamended, the deemed insertion of the specific description, embodied in the advisory of 2013, may not find ready acceptance.
The adjudicating authority has appeared to stretch the proposition for retrospective application of withdrawal of clarification on the basis of cited decisions which, as we have pointed out, were made in an entirely different context. Furthermore, to permit any individual acting on deliberated decisions of an authorized body to be subject to any detriment subsequently is tantamount to incentivizing the irresponsible decision-making by designated authorities. Indubitably, passage of time and hindsight tend to promote wisdom and the perception of errors of the past, in the light of such wisdom, does not erase an assurance offered.
If the test of validity for retrospective effect of notifications, it surely must be no less applicable to clarifications. Imports, if any, made against the impugned licences after issue of clarifications of 2013 are on a footing entirely different from those made before - The impugned order, thus, stands on weak foundations in penalizing past imports. Accordingly, the confiscation as well as imposition of penalties under section 112 and 114AA of Customs Act, 1962 fails.
Appeal allowed - decided in favor of appellant.
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2020 (9) TMI 853 - CESTAT MUMBAI
Levy of penalty - Valuation of imported goods - Laminated Sheets and Plywoods - rejection of declared value - Rule 12 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 - HELD THAT:- The order of confiscation of goods and imposition of redemption fine is not under challenge. We also find that importer M/s Shri Saibaba Impex is not in appeal before us. As per the scheme of Section 111 and Section 112 of the Customs Act, 1962, penalties under Section 112 of the Customs Act, 1962 flow as natural consequence of goods being liable for confiscation under Section 111 of Customs Act, 1962. Apparently penalties under Section 112 are imposable both on the person who has imported the goods held liable for confiscation and on all those who had aided and abetted in the act of illegal importation.
From the order of the Commissioner it is quite evident that adequate opportunity was extended to the appellants to file the reply to the show cause notice adn also appear for personal hearing. It is for the appellants to avail the opportunity that has been granted. It is not the case where no opportunity was granted for making representation against the show cause notice however appellant chose not to avail the same and appear before the adjudicating authority. In our view when sufficient opportunity has been granted by the adjudicating authority before making the order to noticees in the case, and noticee do not make use of those opportunity then the order cannot be said to be bad for the reason that it hit by vice of Natural Justice.
There are no merits in any of the submissions made by and on behalf of the appellants. More so over there is no challenge by the importer to the confiscation of goods before us. As all the facts and evidences have been admitted by the appellants in their statements recorded under Section 108 of Customs Act, 1962 there are no merits in these appeals.
Appeal dismissed - decided against appellant.
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2020 (9) TMI 811 - DELHI HIGH COURT
Auction of consignment - order not supplied to petitioner - HELD THAT:- On the last date of hearing i.e. 14th September, 2020, Mr. Dayan Krishnan, learned senior counsel for petitioner had sought time to place on record an undertaking by way of an affidavit.
To obviate any future controversy, an authorized representative of the petitioner is directed to meet Terminal Manager, ICD- Tughlakabad, on 22nd September, 2020 and finalise the amount due and payable by the petitioner to the respondent for the said nine containers - Till further orders, the petitioner shall make payment in accordance with the paragraphs 4 (a) and (b) of the affidavit dated 14th September, 2020.
List on 28th September, 2020.
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2020 (9) TMI 810 - DELHI HIGH COURT
Implementation of the order - provisional assessment of goods - import of dry dates - petitioners contend that the respondents are not complying with the aforesaid Orders-in-Appeal, whereas the respondents contend that the aforementioned conditions have not been complied with by the petitioners - HELD THAT:- Without getting into the merits of this controversy, the writ petitions are disposed of with the direction that, if the aforesaid three conditions are complied with by these petitioners, namely the bonds are given, the bank guarantees are given and the phytosanitary certificates are given to the concerned authorities, the goods in question shall be released by the respondent authorities within a period of one week from the date of receipt of the same.
Petition disposed off.
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2020 (9) TMI 809 - GUJARAT HIGH COURT
Legality and validity of the seizure of goods - the case of the Department against the writ applicants is that the goods, i.e, scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty by wrongfully availing the benefit of the notification - HELD THAT:- The larger issues, more particularly the legality and validity of the seizure, shall be examined on the next date of the hearing including the preliminary objection raised on behalf of the respondents as regards the alternative remedy available to the writ applicants. However, having regard to the submissions made by Mr. Parikh, we would like to balance the equities at this stage. We would like to see that the writ applicants do not have to suffer a huge loss in their business, and at the same time, we must also ensure that the interest of the Revenue is also protected.
The writ applicants are directed to furnish a running Bank Guarantee of any Nationalized Bank to the tune of ₹ 2.00 Crores, and at the same time, the DRI shall retain with them the raw-goods/materials upto the value of ₹ 10 Crore. If the writ applicants furnish the Bank Guarantee, then the respondents shall provisionally release the rest of the goods (raw materials/finished) at the earliest.
Post the matter for further hearing on 12-10-2020.
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2020 (9) TMI 808 - GUJARAT HIGH COURT
Power of Customs Officers as Police officers - Power to arrest - Classification of offences u/s 135 of the Customs Act, 1962 - High Seas Sale - It appears from the materials on record and the pleadings that the respondent no.2 is also contemplating to institute criminal prosecution for the offences punishable under Sections 132 and 135 respectively of the Customs Act, 1962.
HELD THAT:- Any person can be arrested for any offence under the Customs Act, 1962, by the Customs Officer, if such officer has reasons to believe that such person has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135A or Section 136 of the Customs Act, 1962, and in such circumstances, the Customs Officer is not obliged to follow the dictum of the Supreme Court as laid in the case of Lalitha Kumari (supra).
When any person is arrested by an officer of the Customs, in exercise of his powers under Section 104 of the Customs Act, 1962, the officer effecting the arrest is not obliged in law to comply with the provisions of Sections 154 to 157 of the Code of Criminal Procedure, 1973. The officer of the Customs, after arresting such person, has to inform that person of the grounds for such arrest, and the person arrested will have to be taken to a Magistrate without unnecessary delay. However, the provisions of Sections 154 to 157 of the Code will have no application at that point of time.
The Customs/DRI Officers are not the Police Officers and, therefore, are not obliged in law to register FIR against the person arrested in respect of an offence under Sections 133 to 135 of the Customs Act, 1962.
A Police Officer, making an investigation of an offence, representing the State, files a report under Section 173 of the Code, becomes the complainant, whereas, the prosecuting agency under the special Acts files a complaint as a complainant, i.e. under Section 137 of the Customs Act.
The power to arrest a person by a Customs Officer is statutory in character and should not be interfered with. Section 108 of the Act does not contemplate any Magisterial intervention. The statements recorded under Section 108 of the Customs Act are distinct and different from the statements recorded by the Police Officers during the course of investigation under the Code.
Applicability of OM PRAKASH AND CHOITH NANIKRAM HARCHANDANI VERSUS UNION OF INDIA [2011 (9) TMI 65 - SUPREME COURT] - HELD THAT:- In Om Prakash, the question arose, with respect to the investigation in the cases relating to the Central Excise Act, 1944, and the Customs Act, 1962, as to whether the officers under the said Act could arrest without a warrant in connection with those offences which were non-cognizable and bailable. The powers of the officers of the Excise or the Customs to initiate investigation and to arrest without warrant has been discussed and whether the officers have the powers akin to that of a Police Officer was also looked into. It was held that an offence, in order to be cognizable and bailable, would have to be an offence which is punishable with imprisonment for less than three years. Further, for all those offences which are punishable for a period of three to seven years can be considered as cognizable and non- bailable - The Supreme Court held that the offences under the Indian Penal Code cannot be equated with those listed in the Central Excise Act to draw a conclusion as to which of those offences are non-cognizable and non-bailable. It was held that in view of the Central Excise Act, 1944, the non-cognizable offences are bailable in nature and if a person is arrested, he shall be released on bail. The Supreme Court held that the offences under the Customs Act are bailable and the officers have the same powers as that of a Police Officer.
The decision of the Supreme Court in the case of Om Prakash (supra) has no bearing in the case on hand.
Scope of the term "Any Person" u/s 104 - HELD THAT:- The expression 'any person' in Section 104 of the Customs Act includes a person who is suspected or believed to be concerned in the smuggling of goods. However, a person arrested by a Customs Officer because he is found to be in possession of smuggled goods or on suspicion that he is concerned in smuggling goods is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person is accused of an offence within the meaning of Article 20(3) of the Constitution of India. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, for the purposes of holding an inquiry into the infringement of the provisions of the Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. The accusation could be said to have been made when a complaint is lodged by an officer competent in that behalf before the Magistrate. The arrest and detention are only for the purpose of holding effective inquiry under Sections 107 and 108 of the Customs Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalty
Whether the DRI officers are 'proper officers' for the purpose of Section 28 of the Customs Act, 1962? - HELD THAT:- This Court had the occasion to deal with the term 'proper officer' in the case of SWATI MENTHOL & ALLIED CHEM. LTD. VERSUS JT. DIR., DRI [2014 (9) TMI 186 - GUJARAT HIGH COURT]. The issue involved in the said matter pertained to the exercise of powers by the 'proper officers' vis-a-vis Sections 17, 18 and 28 of the Act. It was held that the notification, for the purpose of Section 2(34) of the Customs Act, assigns functions of the proper officer to the various officers including those under the Directorate of Revenue Intelligence, such as Additional Director, Joint Director, Deputy Directors and Assistant Directors for the purposes of Sections 17 and 28 of the Customs Act.
The DRI officers are also Customs officers and have been conferred with the powers specified under the various provisions of the Customs Act, 1962.
Misuse of Section 108 of the Customs Act, 1962 - allegations of harassment - HELD THAT:- As such there is no credible material on record except the bare words of the writ-applicant on the basis of which we can arrive at the conclusion that the writ-applicant is being unnecessarily harassed by the DRI officials stationed at Vapi by summoning him time and again - the writ-applicant has, in the past, attended the DRI office at Vapi and his statements have also been recorded. We may only observe that if no further inquiry is necessary, then the writ- applicant may not be unnecessarily called at the office of the DRI at Vapi for the purpose of inquiry.
Application disposed off.
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2020 (9) TMI 752 - MADRAS HIGH COURT
Request for return of passport - Smuggling - Gold Bars - It is challenged only on the ground that if the passport is returned to the respondent, he will flew away from India and there is possibility of abscond and he will not return to India for investigation - Sections 135(1) (a), 135 (1) (b), 135(1) (i) (a) of Customs Act, 1962 - HELD THAT:- A solution has to be found within the parameters of law to deal with the case of the petitioners. The petitioners will have to face proceedings under the Customs Act for the alleged violations. Therefore, their passports cannot be handed over to them at this juncture.
In order to strike an harmonious balance between the necessities of law and the requirements of the petitioners to have their stay in India validated so as to avoid being prosecuted under the Foreigners Act, 1946, the FRRO, Chennai, who is present before this Court made some welcome suggestions. He stated that his office is ready and willing to extend the petitioner's Visas for a reasonable period as required by the DRI, which is the prosecuting agency.
The respondent came to India by ETA business visa. His entry was on 28.11.2019, and the permission to stay expired on 28.04.2020. Therefore his stay at India became illegal under Section 14 of Foreigners Act without Registration Request to FRRO, Chennai prior to valid e-visa period, namely 25.04.2020. Since the petitioner was arrested and his passport was seized, he was not able to register his request for extension of his visa at FRRO, Chennai. That apart, the offence registered as against the petitioner are not related to the passport of the petitioner. Therefore, the learned Judicial Magistrate, Special Court for Customs, Alandur, Chennai rightly ordered to return his passport on certain conditions - The respondent shall not depart India till the completion of proceedings in O.S.No.116 of 2019 on the file of the petitioner / complainant.
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2020 (9) TMI 751 - MADRAS HIGH COURT
MEIS Scheme - mistake while submitting Shipping bills - the petitioner's representative instead of entering 'Y' for each line item, selected 'Y' only for the first line item and did not make any selection for remaining items - contention of respondents is that the Director General of Foreign Trade cannot be blamed for the lapse committed by the writ petitioner - HELD THAT:- The exporter ought not to suffer for the inadvertent mistake committed by him. When the filing was done manually, Section 149 of Customs Act provides for effecting corrections. Now, there has been a shift from the manual system to EDI System. In the EDI System, approval is also automated. Since the petitioner had opted only for 'Yes', as far as the first line item is concerned and did not opt for the remaining items, by system default, for the remaining items the system opted 'No' automatically. As already pointed out, this was a sheer inadvertent mistake committed by the writ petitioner's representative. The petitioner had actually intended to claim the benefit under the aforesaid Scheme. The petitioner deserves to be given one more opportunity to set right things. After the shipping bills were filed, they are transferred to NSDL (National Securities Depository Limited), which is a Digital Depository. Unless, the third respondent specifically instructs NSDL, they will not be in a position to forward the petitioner's shipping bills to the second respondent. It is seen that the petitioner had been corresponding only with NSDL all these months.
The petitioner is permitted to make a formal request to the third respondent. After the third respondent receives such a request from the petitioner herein, the 3rd respondent /Commissioner of Customs, Tuticorin will issue No Objection Certificate to enable the petitioner to avail the benefit and also instruct NSDL to transmit all the relevant materials to the Development Commissioner, MEPZ, Tambaram, Chennai - petition disposed off.
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2020 (9) TMI 717 - SC ORDER
Time Limitation for issuance of SCN - Seizure Order - Section 110 of the Customs Act 1962 - HELD THAT:- The respondents may file their counter affidavit in these proceedings within a period of three weeks from today. Rejoinder affidavit, if any, be filed within a period of one week thereafter. The respondents are at liberty to move the CESTAT for early listing of the appeal or the stay application in the meantime.
List the Special Leave Petition on 15 October 2020.
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2020 (9) TMI 716 - DELHI HIGH COURT
Service of SCN - respondent nos.2, 3, 4 & 5 states that her clients have received confirmation from D.C. SVB, New Delhi to the effect that no notice from other customs locations have been issued to the petitioner - HELD THAT:- Keeping in view the fact that since only one show cause notice has been issued to the petitioner by Delhi Customs, this Court is of the view that the procedure prescribed under paragraph 9.2 of the Circular dated 09th February, 2016 is not applicable to the present case. Consequently, the letter dated 17th January, 2020 issued by respondent no.5 is quashed and the respondent no.2 is directed to expeditiously adjudicate the Show Cause notice dated 10th July, 2018 preferably within a period of six months, in accordance with law.
Petition disposed off.
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2020 (9) TMI 715 - MEGHALAYA HIGH COURT
Smuggling - Betel Nuts - Whether the goods are indigenous or imported, however pending adjudication above goods were released provincially under Section 110A of the Customs Act, 1962 on a condition that the petitioner will deposit ₹ 70.51 lakh? - HELD THAT:- At this stage, learned counsel for the petitioner put forth the Intimation Notice for my perusal under Section 150 of the Customs Act, 1962 for disposal of the subject Dry Betel Nuts. He submitted that this notice deserves to be stayed, since condition precedent for provincial release, is sub-judice before this Court.
Hearing of the petition is deferred, stand over to 30-09-2020. Till next date the Notice dated 8th September, 2020 issued by the Superintendent CPF, Champai under Section 150 of the Customs Act, 1962 is stayed.
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2020 (9) TMI 714 - CESTAT NEW DELHI
Valuation of imported goods - Batteries - rejection of declared value - suppression and misdeclaration of import price of goods - HELD THAT:- So far as the batteries imported from M/s Power ROC Company Ltd. vide three bills of entries dated 24.1.2007 is concerned, the bill of entries were assessed provisionally and were pending finalisation. Accordingly, the impugned order is bad under Section 28 of the Customs Act, as the provisional assessment is still not finalised. Accordingly, the demand in respect of three bills of entry nos. 101168, 101169 and 101167 is set aside.
In the present case, the appellant has imported VRLA batteries 6-V/4.5 GLA/4.2 AH/4.5 A.H. We also find that the show cause notice was issued by relying upon the data from seized hard disc and pen drive. However, the appellant was informed later on that the said pen drive and hard disc are not traceable for the purpose of adjudication. The Dy. Commissioner of Customs, SIIB (I), JNCH, in his communication dated 4.11.2016 has categorically stated that the original file of seized documents, hard disc and pen drive seized under Panchnama are not traceable. We further find that the appellant was not noticed before opening of the hard disc/pen drive by the Department. One hard disc and pen drive was opened in the presence of Shri Sanjay A. Chothani, employee of the CHA firm and at the time of opening of another hard disc on the other date, nobody was present in absence of notice to the appellant to witness the retrieval of data. Thus, the whole exercise of the retrieval of data is vitiated rendering it unreliable - Further, as required by Section 138 C of the Customs Act, Revenue failed to bring on record the details of the computer or machine, on which the data was prepared or compiled. Further, it is found that there is no specific correlation with the bills of entry under dispute with the alleged evidence of wire transfer. Further, there is no investigation or confirmation from the persons, whose names have appeared from the email for wire transfer.
The conclusion has been drawn by the Revenue from the cost sheet on the basis of assumption and presumption. The cost sheet reflects the invoice value, which has been remitted through normal banking channel along with other expenses. The suppression of transaction value would also have been reflected in the said cost sheet, which is not the case. The NIDB data is in respect of the import of 12 V batteries by other importers, whereas in the present case, the appellant has imported 6 V batteries. Hence, the NIDB data cannot be relied upon. Further, in respect of the batteries imported from M/s.Shenzhen Leoch Battery Technology, China, we find that the demand of differential duty is based upon the allegation that the appellant has under-valued the other consignments. Hence, they must have suppressed the value in respect of these bills of entries also.
The documents /data retrieved from the hard disc/pen drive, in absence of the authorised person of the appellant, as admittedly no notice was issued to them, cannot be relied upon - further, there has been mis-carriage of justice by neither examining the persons, whose statements have been relied upon in the course of adjudication proceedings, nor they have been offered for cross examination by the appellant.
The issue as regards the transaction value of batteries imported from M/s.Shenzhen Leoch Battery Technology, China, requires re-consideration by the Court Below - the matter as regards the three bills of entries for the batteries imported from M/s.Suqian Yongda Import & Export Co. Ltd. China is remanded and the demand of differential duty and penalty with respect to the import from Power ROC Co. Ltd. is set aside - the penalty in respect of the appeal of the Director of the appellant company, Shri Kapil Garg is set aside.
Appeal allowed in part and part matter on remand.
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2020 (9) TMI 693 - ALLAHABAD HIGH COURT
Maintainability of appeal - contention of learned counsel for the petitioner that the appeal has not been admitted nor any notice has been issued to it as yet, cannot be entertained in the present petition - Release of seized goods - release sought on the premise that the statutory appeal filed by the petitioner against the order of seizure under Section 128 of the Act has been decided in its favour - Section 110 of the Customs Act, 1962 - HELD THAT:- As far as prayer in the present writ petition to give effect to the order passed by the Commissioner under Section 128 of the Act is concerned, the appropriate course of action for the petitioner would be to approach the adjudicating authority, which has passed the order of confiscation of goods, to give effect to the order passed by the appellate authority i.e. for releasing the seized goods, if the seizure order has been set aside in appeal and there is no interim order against the petitioner reviving seizure of goods. Simultaneously, it would be open for the department to pursue the stay application in the pending appeal. No mandamus can be issued in the writ petition.
Petition dismissed.
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2020 (9) TMI 661 - CESTAT NEW DELHI
Valuation of imported goods - old and used Digital Multifunctional Devices - rejection of transaction value - enhancement of the value of the imported goods on the basis of Chartered Engineer’s Certificate - non-submission of specific licence for importation from the DGFT - CBEC Circular No.4/2008-Cus dated 12.02.2008 - HELD THAT:- The ld. Commissioner (Appeals) has relied upon the CBEC Circular No.4/2008-Cus dated 12.02.2008, which deals with valuation of second hand machinery/capital goods and has upheld the enhancement of the declared value based on the valuation done by the Chartered Engineer at the instance of the Department. In the same circular in Clause 2(iii), it has been provided that however the transaction value of Rule (3) cannot be rejected by ab initio application of Rule 9, in as much as, one cannot, before rejecting the transaction value of Rule 3 with sufficient evidences, straight away arrive at notional value under Rule 9.
Rule 3 read with Rules 12 requires that where the proper officer has reason to doubt the truth or accuracy of the declared value in relation to the imported goods, he may ask the importer to furnish further information including the documents or other evidences. If after receiving such further information, or in the absence of the response of the importer, the proper officer still have reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of Rule 3 (1) - In the present case, no such exercise has been done by the proper officer. Thus, rejection of the transaction value is held to be arbitrary and thus, the same is set aside and the declared value restored for the purpose of assessment.
Confiscation of goods - HELD THAT:- The same is upheld as the goods imported, admittedly, fall under the category of “restricted goods” under the Import Policy of the relevant period and the appellant, as required, failed to produce specific import licence from DGFT - the appellant had obtained permission from the Ministry of Environment & Forest vide O.M. F.No.23-85/2012/HSMD dated 10.09.2013, wherein they are permitted to import 1500 nos. of digital multifunctional print and photocopying machines, subject to the conditions that MED must have residual life of 5 years as certified by Chartered Engineer, which has been certified - the order of confiscation upheld.
The redemption fine reduced to 10% and penalty under Section 112 (a) reduced to 5% of the assessable value - appeal allowed in part.
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2020 (9) TMI 660 - CESTAT MUMBAI
100% EOU - benefit of exemption Notification No. 53/97- Cus dated 3.6.1997 - benefit denied observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by availing the concessional benefit under EPCG Scheme - whether the respondents are to be denied the benefit of exemption Notification No. 53/97-Cus dated 3.6.1997, allowed at the time of import two DG Sets in 1997, on clearance of said two DG Sets on being obsolete in DTA to EPCG License holders at concessional rate of duty?
HELD THAT:- The adjudicating authority simply denied the benefit of Notification No. 53/07-Cus dated 3.6.1997 observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by availing the concessional benefit under EPCG Scheme. The learned Commissioner (Appeals) has elaborately dealt with the said finding of the adjudicating authority. After applying the Circular issued from time to time, the learned Commissioner (Appeals) has held that the appellants have cleared the 2 DG Sets in question bearing Sl. No. 2DN-00890 and DN-00915, under due permission for clearance into DTA as granted/permitted by the Development Commissioner, SEEPZ, vide letter No. SEEPZ/28/EOU/77/99-2000/ Vol-III/6876 dated 19.08.2004. I also hold that the appellants have fulfilled the conditions laid down in the said letter that (i) the appellants shall maintain the stipulated export obligation and NFE; and (ii) the appellants shall pay the applicable rate of duty on the value assessed by the Customs/Central Excise authorities. I further find that the appellants are eligible for the concessional rate of duty on the clearances effected to EPCG License holder unit.
No contrary evidence has been produced by the Revenue to rebut the aforesaid findings of the learned Commissioner (Appeals) - there are no merit in the appeal filed by the Revenue - appeal dismissed - decided against Revenue.
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2020 (9) TMI 659 - CESTAT MUMBAI
Provisional release of the seized goods - IGST refund - duty drawback - it was opined that the goods were grossly overvalued to claim undue benefits of enhanced IGST refund and Drawback - Section 113(i) and 113(ia) of the Customs Act, 1962 - HELD THAT:- From the facts available it appears that while determining the quantum of bank guarantee, departmental authorities have taken into account the amount of IGST paid and would be admissible as refund on exportation of the impugned goods. The prima facie case of the department is that appellant have overvalued the goods to claim higher export benefits. If the goods have been overvalued then the appellants would have paid the higher IGST at the time of the clearance of goods for export. We do not find any merits in inclusion of the IGST amount paid while determining the quantum of bank guarantee. The amount of IGST which may be refunded is available with the revenue. Revenue may continue investigating the case against the appellant and finalize their refund only after completion of investigation. If we deduct the amount of ₹ 35,19,450/- from the total value of ₹ 38,14,125/- recorded in order of Commissioner (Appeal) the case of overvaluation to claim undue benefit against the Appellants will be of ₹ 2,94,675/-.
In the present case when the goods have not been released even after the lapse of 18 months, there are no justification for imposing such harsh conditions by the Revenue while permitting provisional release of the goods - the appellant is directed to execute a bond equivalent to the value of the seized goods as has been directed by the Revenue vide its letter dated 02.05.2019 supported by a bank guarantee of ₹ 5,00,000/- only, which is in accordance with the spirit of the Board Circulars referred.
The appeal is disposed of, by modifying the letter dated 02.05.2019 to the extent that the value of bank guarantee to be executed is reduced to ₹ 5,00,000/-.
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2020 (9) TMI 658 - CESTAT MUMBAI
Penalty - Anti Dumping Duty (ADD) deposited with interest before issuance of SCN - validity of SCN - quantum of penalty - HELD THAT:- The appellant had deposited the entire amount of Anti Dumping Duty along with interest before issuance of the show cause notice. Since the department has accepted such facts, that as per the provisions of sub-section(5) of Section 28 ibid, the appellant was required to be issued with the show cause notice only for deposit of the penalty amount of 15% of the short levy duty.
However, instead of issuing the show cause notice for recovery of the 15% amount of penalty, the department had proceeded against the appellant for confirmation of the 100% penalty in respect of the short paid amount of duty - Since, there is no ambiguity in interpretation of the provisions of sub-section (5) of Section 28 ibid, with regard to the quantum of penalty to be deposited, the benefit of reducing amount of penalty of 15% should be available to the appellant.
The impugned order, to the extent it has upheld the adjudged demand of penalty confirmed in the adjudication order is set aside and the appeal to such extent is allowed in favour of the appellant, holding that the appellant should liable to pay penalty of 15% of the adjudged amount of duty confirmed/paid by it before initiation of the show cause proceedings - Appeal allowed in part.
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2020 (9) TMI 606 - CESTAT NEW DELHI
Validity of SCN - Penalty under Section 114 of the Customs Act - abetting in Smuggling - export of red sanders - prohibited goods - case against appellant is that he procured red sanders and also stores the same in his godown at Delhi - demand based on statements of persons, which were later retracted - HELD THAT:- Learned Authorised Representative points out from para 34.3 of the show cause notice, it is mentioned that this appellant knowingly engaged in negotiation and illegal supply of red sanders for fraudulent exports and actively associated himself in smuggling of red sanders to Shri Lin of China with the help of other members of the syndicate. Thus for the said act of omissions and commissions, is liable to penalty under Section 114 of the Customs Act, 1962. However, in para 35 of the show cause notice wherein the party put to notice are required to finally show cause as to why goods, currency etc. not be confiscated under Section 113 read with Section 121 of the Custom Act for violation of Section 11 of the Customs Act read with Appendix-II of CITES. Thus for the error of not mentioning the proposal to impose penalty again in para 35, does not render imposition of penalty bad, as the show cause notice is required to be read as a whole. Single para cannot be read in isolation for drawing a conclusion. Thus the allegation made in para 34.3 to impose penalty is sufficient.
Evidently this appellant was an active member of the smuggling syndicate of red sanders. He further states that in the course of search of residential premises of this appellant, some documents in connection with export were found. This appellant also accepted in the course of statement recorded under Section 108 of his involvement in the smuggling. However, subsequently retracted his statement. Under such circumstances retracted statement is good evidence in view of the corroborative statement of the other persons. Further call detail records indicate that this appellant was in direct contact with the other members of the syndicate.
Thus, there is no evidence to show that the goods were allegedly kept with intention to export or were attempted to be exported, no case of confiscation is made out - It was also observed by the Division Bench that so far the seizure of red sanders at Mundra CFS is concerned, there is a separate show cause notice, not concerned with the seizure at Delhi. Division Bench also held that the entire case of Revenue is made out mainly based on the retracted statements, which have held no evidentiary value - It was also held that Revenue could not establish the case of attempt to export of prohibited goods and accordingly, held that the confiscation of red sanders and cash is not sustainable and consequential penalty imposed was also set aside.
No case is made out against this appellant also as the confiscation itself have been set aside - no case of abetment is made out against this appellant in the facts and circumstances - the penalty imposed under Section 114 is set aside - Appeal allowed - decided in favor of appellant.
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